Abstract

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Quiet Rebellion II: An Empirical Analysis of Declining Federal Drug Sentences Including Data from the District Level

This is the second of two articles in which we seek an explanation for the hitherto unexamined fact that the average length of prison sentences imposed in federal court for narcotics violations declined by more than 15% between 1991-92 and 2000.

Our first article, Quiet Rebellion? Explaining Nearly a Decade of Declining Federal Drug Sentences, 86 Iowa Law Review 1043 (May 2001) ( "Rebellion I" ), examined national sentencing data in an effort to determine whether the decline in federal drug sentences is real (rather than a statistical anomaly), and to identify and analyze possible causes of the decline. We considered whether the decline resulted primarily from trends in discretionary decision-making among the front line actors in the sentencing system (prosecutors, defense counsel, probation officers, and district judges) when dealing with individual cases, or whether the decline flowed from non-discretionary factors, such as changes in statutory or guidelines law, alterations in the mix of criminal cases brought to the federal system. Rebellion I arrived at four conclusions:

First, the downward trend in federal drug sentence length is real. Second, at least some of the decrease flows from non-discretionary factors. Third, the decrease in drug sentences since 1991-92 cannot be entirely explained by non-discretionary causes, but is, to a significant degree, the product of an array of discretionary choices by front line sentencing actors. National data show: (1) at virtually every point in the Guidelines sentencing process where prosecutors and judges can exercise discretionary authority to reduce drug sentences, they have done so; and (2) where we can measure trends, the trend since roughly 1992 has been toward exercising discretion in favor of leniency with increasing frequency. Fourth, we suggested that these discretionary choices are, at least in part, a product of a widespread perception among front line sentencing actors that drug sentences are often too high, or are at the very least often higher than necessary to achieve the personal or institutional objectives of these front line actors of the federal criminal system.

In the current article ( "Rebellion II" ) we update our data and reexamine them organized by the federal judicial districts. In our empirical analyses of average drug sentence length we find:

(1) From the district-level perspective, the movement of average drug sentences has been markedly uneven. While fifty-one districts experienced a decline in average drug sentence between 1992 and 1999, average drug sentences increased in forty-one districts. Nonetheless, those districts in which sentences decreased accounted for 72% of all federal drug cases. (2) Increases in prosecutorial workload correlate with decreases in average drug sentence within districts. However, increases in judicial workload do not correlate significantly with decreases in average drug sentence. We remain unconvinced that workload pressures are a strong factor in the decline of the national average federal drug sentence. (3) Changes in the mix of drug types prosecuted within a district correlate with changes in average drug sentence within a district. In particular, during 1996-99, increases in the percentage of marijuana cases prosecuted within a district correlate with a decline in the district's average drug sentence. (4) Between 1996 and 1999, a dramatic increase in the number of marijuana prosecutions in the five Mexican border districts taken together with the adoption in these districts of "fast-track" sentence discounts for many marijuana offenders exerted downward pressure on average drug sentences nationally. (5) The available evidence continues to suggest a prolonged, if not regionally uniform, pattern of exercise of discretionary choice by frontline sentencing actors to decrease federal drug sentences.